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*MoQ 



I YORK 

' LI N I V F P, S I T V 

OSGOODE HALL LAW SCHOOL 
4700 KEELE STREET, DOWNSVIEW, ONTARIO M3J 2R5 



March 6, 1980 



The Honourable Robert G. Elgie, M.D. 
Minister 

Ministry of Labour 
400 University Avenue 
Toronto, Ontario 



ONTARIO 

MINISTRY OF LABOUR 

MAR 1 1980 

HUMAN RIGHTS 
COMMISSION 



Re: The Cornplaint made by Ms. Phyllis Ingram of Toronto, 
Ontario/ alleging discrimination in employment by 
Natural Footwear Limited, 1203 Caledonia Foad, 
Toronto , Ontario . 



Dear Sir: 

I am pleased to i submit herewith my report with respect to 
the above matter. 



Yours very truly, 




John D. McCamus 



JDM:w 
End. 



cc: Ontario Human Rights Commission / 
Mr. M. Cohen 



4 



1 



THE ONTARIO HUMAN RIGHTS CODE, 
R.S.O. 1970, Chapter 318, as amended 



IN THE MATTER OF the complaint made by Ms. Phyllis Ingram of Toronto, 
Ontario, alleging discrimination in employment by Natural Footwear 
Limited, 1203 Caledonia Road, Toronto, Ontario. 



A HEARING BEFORE: Professor John D. McCamus 

Appointed a Board of Inquiry into the above 
matter by the Minister of Labour, The Hon. 
Robert Elgie, to hear and decide the above- 
mentioned complaint. 



MINISTRY OF LABOUR 

MAR 1 1980 

HUMAN RIGHTS 
COMMISSION 



Appearances : 

Mr. A.C. Millward • Counsel for the Ontario Human Rights Commission 

Mr. D.A.J. D'Oliveira and Ms. Phyllis Ingram 



Mr. M.M. Cohen 
Mr. P. BonEnfant 



Counsel for Natural Footwear Limited 



Digitized by the Internet Archive 

in 2013 



http ://arch i ve . org/detai Is/boi 1 09 



I . Introduction 



This Board of Inquiry was established by the Minister of Labour 

of the Government of Ontario under section 14 (a) of the Ontario Human 

Rights Code, R.S.O. 1970/ c. 318, as amended to inquire into a complaint 

filed with the Ontario Human Rights Commission by Ms. Phyllis Ingram. 

In her complaint (filed as Exhibit 1) Ms. Ingram alleged the following: 

I am a black Jamaican-Canadian woman, and I believe 
that I was discriminated against in my employment 
because of my race and colour, contrary to section 
4 (1) (b) , (g) of the Ontario Human Rights Code . . . 

Section 4 (1) (b) , (g) of the Ontario Human Rights Code provides as follows 
(1) No person shall, 

... (b) dismiss or refuse to employ or to continue 
to employ any person; 

... (g) discriminate against any employee with 

regard to any term or condition of employment, 

because of race, creed, colour, age, sex, marital 
status, nationality, ancestry, or place of origin of 
such person or employee 

In her complaint, Ms. Ingram alleges that the respondent, Natural 

Footwear Limited, discriminated against her by reason of her race or 

colour, in imposing unfairly burdensome work conditions upon her, in 

refusing to give her a raise at a time when, she alleges, all other 

employees in her area were given a raise, and finally, in dismissing 

her from her job on January 11, 1978. At all material times, the person 

responsible for making employment decisions with respect to Ms. Ingram 

at Natural Footwear Limited was her supervisor, Mr. Stanley Kowalewski. 

It was Mr. Kbwalewski who supervised Ms. Ingram's work, who decided 

to not give her a raise in December of 1977, and who made the decision 

to dismiss Ms. Ingram on January 11, 1978. The central question before 



this Board of Inquiry, then, is whether Mr. Kowalewski, in his dealings 
with Ms. Ingram, discriminated against her on the basis of her race or 
colour. 

The position taken by the respondent, Natural Footwear Limited, 
with respect to these allegations, is that they are completely unfounded. 
Natural Footwear Limited maintains that it has not, since its inception 
in 1973, discriminated in its hiring or employment practices. Indeed, 
Mr. Cohen has argued on behalf of Natural Footwear Limited that it 
is a model employer in this respect and that its work force is a 
"regular United Nations" consisting of individuals from various ethnic, 
racial and colour groupings. With particular reference to the allegations 
of Ms. Ingram, the respondent alleges that Mr. Stanley Kowalewski 's 
decision to terminate her contract of employment with Natural Footwear 
was motivated solely by a determination that she was failing to discharge 
her responsibilities as an employee conscientiously and competently. 
The respondent denies that Ms. Ingram was subjected to discriminatory 
treatment with respect to the terms and conditions of her employment. 

As a preliminary matter, it will be useful to indicate briefly the 
general nature of the evidence presented to this Board of Inquiry. The 
evidence led in support of Ms. Ingram's allegations was essentially of 
two different kinds. First, Ms. Ingram herself testified with respect 
to the circumstances leading to and culminating in her dismissal. It 
was her view, as expressed by her in her testimony, that the only possible 
explanation for these events was that Mr. Stanley Kowalewski was 
motivated by feelings of racial discrimination. The second type of 
evidence led in support of Ms. Ingram's allegations had as its object 



the demonstration of a theory, advanced by Mr. Milliard and Mr. 
D'Oliveira, that there was a pattern of discriminatory activity at 
Natural Footwear Limited, of which the firing of Ms. Ingram formed a 
part. Although, as will be seen, Ms. Ingram would appear to be the 
only black employee fired by Mr. Stanley Kowalewski, there were other 
black employees fired by other managers and, it is alleged, these 
dismissals should also be seen as acts motivated by racial 
discrimination. A number of black former employees of Natural Footwear 
Limited appeared before this Board of Inquiry and indicated that they 
felt rheir dismissals were unwarranted. 

On behalf of Natural Footwear Limited, evidence was led which 
tended to show that the dismissal of Ms. Ingram and the other dismissed 
black employees was based on considerations other than those of 
racial discrimination. Further, a group of employees, some of whom 
were black, testified to the effect that they did not feel that 
practices of racial discrimination occurred at Natural Footwear Limited. 
Simply stated, it was their view that all employees at Natural Footwear 
Limited were treated equally from this point of view by the various 
managers and supervisors. More particularly, two black employees 
testified that they felt Mr. Stanley Kowalewski did not act in a 
discriminatory fashion in his dealings with employees. 

In short, the Board of Inquiry was presented with evidence on both 
sides of the central question as to whether Mr. Stanley Kowalewski had 
been motivated by feelings of racial discrimination in his dealings 
with Ms. Phyllis Ingram. In the following sections of this decision, 
the events giving rise to the appointment of this Board of Inquiry will 



be considered in more detail. As a preliminary matter, however, it will 
be useful to consider briefly certain submissions made by Mr. Millward 
and Mr. D'Oliveira .with respect to the legal burden of proof which 
rests with Ms. Ingram and the Ontario Human Rights Commission, the latter 
body having carriage of this complaint on behalf of Ms. Ingram pursuant 
to section 14(b) (1) (a) of the Ontario Human Rights Code. 

II. The Burden of Proof 

As a general matter, it is clear that a burden of establishing 
that the alleged acts of discrindnation did in fact occur rests with 
Ms. Ingram and the Ontario Human Rights Commission. These parties 
carry the burden of persuading the Board of Inquiry that, on the balance 
of probabilities, decisions taken with respect to Ms. Ingram's employment 
by Mr. Stanley Kowalewski were motivated by discriminatory attitudes 
in contravention of the Ontario Human Rights Code. Although all counsel 
appearing before this Board of Inquiry seemed to be in agreement with the 
foregoing propositions, Mr. Millward and Mr. D'Oliveira made a number 
of submissions relating to the establishment of a prima facie case of 
discrimination and a resulting shift in the burden of proof to the 
respondent. It will be useful to explore briefly the general nature of 
the submissions and their significance for the matter at hand. 

A rather elaborate analysis of the allocation of burdens of proof 
in matters of this kind, on which Mr. Millward and Mr. D'Oliveira rely, 
is to be found in a body of American case law, decided under Title VII of 
the Civil Rights Act of 1964, an American federal statute which is in 



5. 

material respects similar to the Ontario Human Rights Code. In a 
leading American case, McDonnell Douglas Corporation v. Green (1973), 
93 at S. Ct. 1817, the U.S. Supreme Court set out a four step analysis 
for determining the proper allocation of the burden of proof in cases where 
it is alleged that an employer has engaged in discriminatory hiring 
practices. Subsequent American cases have developed a modified version 
of this analysis to deal with situations, such as the present case, 
in which it is alleged that a dismissal has occurred on discrimina- 
tory grounds. 

The analysis set forth in the McDonnell Douglas case was expressed 

by Mr. Justice Powell (at pg. 1824) in the following terms: 

"The complainant in a Title VII trial must carry the 
initial burden under the statute of establishing a 
prima facie case of racial discrimination. This may 
be done by showing 

(i) that he belongs to a racial minority; 

(ii) that he applied and was qualified for a job 
for which the employer was seeking applicants; 

(iii) that despite his qualifications, he was 
rejected; and 

(iv) that, after his rejection, the position remained 
open and the employer continued to seek applicants 
from persons of the complainant's qualifications." 

Mr. Justice Powell went on to say that once a prima facie case of this 

kind has been established by the complainant, "The burden then must shift 

to the employer to articulate some legitimate, non-discriminatory reason 

for the employee's rejection." 

Subsequent to the McDonnell Douglas decision, a number of American 

courts have attempted to modify Mr. Justice Powell's formula so as to 

render it applicable to cases of dismissal. See, for example, Long v. 

Ford Motor Co. (1974) , 496 F. 2d 500; Potter v. Goodwill Industries (1974) 



518 F. 2d 864. The effect of these cases has been summed up in Lawson 

on Employment Pi scr miration (Vol. 3, para. 86.40) as follows: 

"The formula as adjusted would be this: 
Plaintiff, in his prima facie case, must prove that 
he is 'qualified' in the sense that he is not 
disqualified by the conduct for which he was 
discharged, and, moreover, he must prove that the 
employer continued, rot to 'seek' but to retain 
employees with the same disqualifications. The 
burden would then pass to the employer to prove that 
he had a legitimate, nondiscriminatory reason for 
the firing. If he succeeded, the plaintiff would 
finally have an opportunity to prove that the 
ostensible reason was in fact pretextual . " 

lb put the matter more plainly, it is Lawson 's view that if a 
complainant can show that he has been fired for a particular reason, 
and that other people to whom the same reasoning would apply, have 
not been fired, a legal burden would then be shifted to the employer 
to come forward and indicate that he had a "legitimate" or non- 
discriminatory reason for the firing. If the employer did come forward 
with such an explanation for the firing, it would then be up to the 
complainant to prove that the "legitimate" reason was not the real reason 
for the dismissal but was, in fact, merely a cover or mask for dis- 
criminatory attitudes which formed the real basis for the decision to 
dismiss. 

It is unnecessary to dwell on the question of whether this 
American jurisprudence is applicable to the determination of a complaint 
brought under the Ontario Human Pd.ghts Code. Although it is rty view 
that these decisions develop an analytical framework which could properly 
be used by Boards of Inquiry in assessing evidence brought before them, 
this analysis offers nothing to the complainant in a case such as the 



7. 

present, where the respondent has, in fact, come forward and proffered 
a "legitimate" or non-discximinatory reason for the dismissal. In these 
circumstances, the ultimate burden of proving that the explanation 
offered by the respondent is a fictitious cover for discriminatory 
attitudes, rests with the complainant. 

In short, the establishment of a prima facie case of discrimination 
is useful in shifting a burden to the employer to come forward and offer 
an explanation for the dismissal, which is not based on dliscriminatory 
considerations. Once the employer has come forward, however, the burden 
rests with the complainant to prove, on the balance of probabilities, 
that the explanation put forward is false and pretextual. It is this 
burden which rests with Ms. Ingram and the Ontario Human Rights 
Commission in the present case. 

One further point should be noted. In his argument, Mr. D'Oliveira 
appeared to suggest that the "legitimate" reason put forward by the 
employer must establish that the dismissal was in some sense warranted 
or justified by the alleged misconduct of the employee. It is my view,^ 
however, that the proper test of the "legitimacy" of the reason proffered 
by the employer is simply that it is wholly unrel ated to the prohibited 
grou nds of discrimination . Thus, it may be that a particular employer 
would impose the sanction of dismissal on the basis of misconduct which 
most or many other employers would penalize in some less drastic way. 
Such a dismissal, even though it be harsh and even though it be one 
which could not be upheld under the terms of a typical collective agree- 
ment, would be immune from attack under the Human Rights Code, provided 
that the reasons for the dismissal were completely unrelated to the 



8. 

grounds of discrimination prohibited by the Code. To accede 
to Mr. D'Oliveira's suggestion, would c onvert the Ontario Human Righ ts^ 
Code from an antidiscrimination statute to one which generally prohibits 
harsh or unwarranted dismissal of employees . This is a constructi on, 
in my view, which the Ontario Human Rights Code cannot reasonably be 
expec ted to beax_- I would agree, however, with Mr. D'Oliveira's 
submission to the following extent. In a case where an employee has been 
dismissed on what appear to be rather insubstantial grounds, the employer 
is more vulnerable to the inference that the grounds put forward as an 
explanation for the dismissal are, in fact, pre textual. 

III. Natural Footwear Limited, its Management and the lasting Line 

. A brief account of the history of the respondent, Natural Footwear 
Limited, its management personnel, and the process by which shoes are 
manufactured on its premises, will be of assistance in understanding 
the chronology of events to be set forth below. 

Natural Footwear Limited was established in 1973 by Mr. Eon Green 
and Mr. Michael Budman, the latter of whom testified before this Board 
of Inquiry with respect to the growth and development of the company and 
its shoemaking operations. Messrs. Green and Budman, having no previous 
experience in the manufacturing of shoes, had resolved to attempt to 
produce a market a type of shoe, referred to as a "negative-heel shoe", 
ultimately marketed by the company under the tradename "Roots". 
In order to obtain expertise in the design and manufacturing of such 
a shoe, Green and Budman approached a small family-run shoe company 



9. 

owned by John Kowalewski and his four sons, Richard, Stanley, Henry and 
Carl. Apart from members of the family, the Kowalewski factory had only 
one other employee at that time. The Kowalewskis designed and manu- 
factured the "Roots" shoe and the shoe was first brought out onto the 
market in August of 1973. Shortly thereafter, Green and Budman entered 
into an arrangement with the Kowalewskis to purchase their business 
and to retain various members of the family as management personnel in 
the new operation. 

The company enjoyed rapid and remarkable success. Mr. Budman 
described the Roots product as "the largest fad that has ever come into 
the shoe business." As a result, the manufacturing operation grew very 
quickly. Within a few years' time, the company employed something close 
to the work force of approximately 130 to 150 people it employs today. 

The various members of the Kowalewski family are still involved in 
the business. The father, John Kowalewski, and his son Carl, are 
responsible for design of shoes for the company. The other sons are 
responsible, in effect, for the day-to-day operation of the manufacturing 
aspect of the company's operations. Richard Kowalewski is the plant 
manager. Reporting to him are his brothers Henry, who is in charge of . 
the "fitting" room, and his brother Stanley, who is in charge of the 
"finishing, lasting and packing" operations. Mr. Budman testified to 
the general effect that he and Mr. Green do not involve themselves much 
in the daily administration of the plant. The authority to hire and 
fire employees, for example, has been delegated to the three Kowalewski 
brothers responsible for managing the plant. 

According bo Mr. Budman 's testimony, the basic "Roots" shoe 



10. 

constituted 100% of the company's shoe production until the early part 
of 1977. The "fad" had apparently trailed off in 1976 and the company 
began to introduce other lines of shoes and boots. In his testimony, 
Richard Kowalewski indicated that further innovations were introduced 
in 1978 with the introduction of something called the "Classic" line 
which marked a departure from the "negative-heel" concept on which all 
previous boots and shoes had been based. The Classic line consisted 
of various types of shoes which were more sophisticated in their design 
and more expensive to produce. The "Classic" boots and shoes have 
heels of a traditional kind and are manufactured, according to Mr. 
Kowalewski , from more expensive leathers than those used previously by 
the company. 

At the time of the events giving rise to the present dispute, Mr. 
Kowalewski 1 s evidence indicates that the daily production of the factory 
would typically be something in the order of 1300 to 1500 pairs of shoes 
per day. The process by which the shoes are manufactured is a relatively 
straight-forward one. Pieces of leather of the appropriate size and 
shape are prepared in the cutting room, an operation which is supervised 
by Richard Kowalewski in addition to his responsibilities as plant 
manager. The pieces of leather are stitched together in the sewing 
room operation, under Henry Kowalewski' s supervision, and forwarded to 
the lasting room. The lasting operation involves, in effect, the 
assembly of the shoe. From the lasting line, the completed shoes are 
taken to be inspected, packed and shipped. 

The supervisory responsibility for the lasting operation, as men- 
tioned above, is that of Mr. Stanley Kowalewski. It was the lasting 



11. 

line on which Ms. Ingram was employed during her career with Natural 
Footwear Limited. 

The various stages of the lasting operation were the subject of 
considerable evidence before this Board of Inquiry and the relative 
difficulty of the various tasks involved was the subject of some contro- 
versy. It will be useful, therefore, to indicate briefly the general 
nature of the lasting operation and the manner in which it is organized 
at Natural Footwear Limited. 

Parenthetically, it should be noted that the Board of Inquiry 
acceded to a motion by Mr. Cohen that a view should be taken of the 
premises of Natural Footwear Limited for the specific purpose of 
observing the lasting operation in action. Mr. Millward objected to this 
proposal for the exclusive reason that he did not feel it would be a 
useful expenditure of the Board's time. Mr. Millward did not object 
either that the proposed view would be prejudicial or that it was, in any 
way, beyond the powers conferred upon the Board by the Ontario Human 
Rights Code. The Chairman ruled that a vie^ would be taken for the limited 
purpose of assisting in a proper appreciation of the oral testimony 
led before the Board of Inquiry. This would appear to be the proper 
limitation on the purpose for which a view may be taken in a civil 
proceeding covered by the Ontario Rules of Practice. See, Paul and Paul 
v. Fadden , [1953] O.W.N. 306; Chambers v. Murphy , [1953] O.W.N. 399. 
It was not necessary for the Chairman to determine whether a Board of 
Inquiry constituted under the Ontario Human Rights Code is strictly 
limited by this principle inasmuch as it was not suggested by Mr. Cohen 
that the view should have any broader purpose or function than this. 



12. 

In the event, the Chairman attended at the premises of Natural Footwear 
Limited in the company of Mr. D'Oliveira, representing Ms. Ingram and 
the Ontario Human Rights Commission, and Mr. Cohen, representing Natural 
Footwear Limited, and observed the lasting process for a brief period 
of time. The following account of the lasting operation and the assembly 
line or "lasting line" which forms its central core, is based on 
evidence submitted at the hearings conducted by the Board of Inquiry. 

A diagram of the lasting line operation submitted in evidence 
(Exhibit 2) indicates a nine-step process by which the shoes are assembled. 
The various pieces of the individual shoe are assembled around a "last", 
an object which roughly approximates the size and shape of the human 
foot which the shoe is supposed to fit. Before the individual lasts are 
placed on the assembly line, an insole is tacked onto the bottom of the 
last with the assistance of a machine referred to as the " insole- tacker " . 
The person who operates the insole- tacker then forwards these lasts to 
the "Assembler, " a person stationed on the assembly line who places the 
leather "uppers" or "tops" of the shoes on the upper side of the last. 
The Assembler then places the shoe on racks which are carried around 
automatically by the assembly line mechanism from one station on the 
line to the next. The operator at each station of the line can stop 
the progress of the individual rack while he or she works on the shoe 
in question. Once their operation is complete, the last is returned 
to the rack and put in motion once again to move on to the next station. 
The operator at each station on the line performs an operation on each 
shoe which involves the use of a particular machine. 



13. 

After leaving the Assembler, the first stop is the toe lasting 
operation. This operator employs a machine which secures the front 
end of the shoe to the bottom of the insole and fits the toe leather 
snugly over the last. The next operation is that of "side-lasting/ 1 by 
which the sides of the shoe are similarly secured to the bottom of the 
insole. One of the witnesses, Mr. Sid Green, testified that this was 
the most difficult operation in the entire process. The fourth step in 
the process, as one might expect, is to secure the heel around the last 
in a similar fashion. The next step — "roughing" — involves something 
like a "sanding" process by which excess material is removed from the 
bottom of the insole. The sixth step involves the addition of cement 
to the bottom of the assembled shoe and the seventh step, "drying", 
involves matching the shoe up with an appropriately sized sole and 
sending the shoe through a drying process which will appropriately 
prepare the cement for the addition of the sole. The eighth step in 
the process involves the "pressing" of the sole onto the bottom of the 
shoe. The construction of the shoe now being completed, the shoes 
move on to the final station on the line, the last-pulling operation. 
It was this particular job — last-pulling" — in which Phyllis Ingram 
was employed during all of her time as an employee of Natural Footwear 
Limited. 

The function of the last-puller is to remove the last from the 
completed shoe. An automatic machine of some sort assists in "breaking" 
the last or bending it in such a way as to facilitate its removal from 
the shoe. Once this has been accomplished, the shoe is placed on a rack, 
ultimately to be carried over to the packing and shipping area. The 



14. 

last is placed on a rack to go over to the insole tacker so that the 
process of manufacture may begin all over again. The individual racks 
which travel around on the assembly line are then released by the last- 
puller and forwarded on to station number one, where assembled shoes 
will be placed on the racks by the Assembler. It was generally agreed 
by all witnesses who testified with respect to this matter that the 
task of removing the lasts from the shoes was a more difficult matter 
in the case of boots. Apparently, in the case of some boots at least, 
it would be impossible to use the automatic equipment to "break" 
the last and this would make the job of removing the last more difficult. 

IWelve employees are engaged in the lasting operation. One person 
operates the insole- tacker, and one employee is located at each of the 
nine stations on the line, with the exception of the cementing and sole- 
pressing operations, on each of which two employees are utilized. 

IV. Phyllis Ingram and Natural Footwear Limited 

The complainant, Phyllis Ingram, commenced wDrk as an employee of 
Natural Footwear Limited on October 2, 1974. She was hired by Stanley 
Kowalewski to work as a last-puller. She remained at this position and 
under Stanley Kowalewski 's direct supervision until her dismissal by Mr. 
Kowalewski on January 11, 1978. Both Ms. Ingram and Mr. Kowalewski 
appear to agree in their testimony that the first two and a half to 
three years of their relationship were completely satisfactory. Mr. 
Kowalewski indicates that Ms . Ingram was a very good worker and employee . 
Ms. Ingram had no complaint to make with respect to her treatment over 



15. 

that period of time. Ms. Ingram received raises on six occasions during 
this period. Her hourly wage ultimately increased from a starting rate 
of $2.50 to $3.85 on December 20, 1976. 

If Phyllis Ingram and Stanley Kowalewski agree that the first two 
and a half to three years of their relationship was quite satisfactory, 
however, they disagree in their evidence with respect to most other 
matters relating to this dispute. 

As far as Mr. Kowalewski is concerned, problems with Phyllis Ingram's 
performance on the job began to develop after she returned from an 
extended vacation in the summer of 1977. Indeed, the first point of 
disagreement between Mr. Kowalewski and Ms. Ingram with respect to the 
facts relates to the arrangements under which this holiday occured. 
The practice of Natural Footwear Limited is to close the factory down for 
two weeks each summer, at which time the staff has its two-week holiday. 
Stanley Kbwalewski testified that it was their practice at the company 
to not give a vacation of a longer period than this to employees. If 
an employee took a longer period of vacation, they would not be guaranteed 
a job upon their return. Mr. Kowalewski testified that Ms. Ingram asked 
his permission for an additional week of vacation in the summer of 1977. 
This request he denied, informing Ms. Ingram that she would not be 
guaranteed a job if she did not return at the usual time. Not only did 
Ms. Ingram not return after two or three weeks, Mr. Kowalewski testified, 
she returned some period of time thereafter and phoned him to see if 
she could come back to work. As he was in need of an employee at that 
time, he agreed to take her back even though it was his feeling that 
he was not under any obligation to do so. 



/ 



16. 

Ms. Ingram has a very different view of the arrangements concerning the 
holiday. Ms. Ingram testified that she had asked for an extra month off in 
addition to the usual two weeks. Although Stanley Kbwalewski had initially 
protested that "we need you", Ms. Ingram testified that he subsequently 
went away and returned to tell her that it was "okay" for her to go on this 
extended vacation. Ms. Ingram's evidence was that she returned after a five 
week absence (one week less than the approved holiday) and, after phoning 
Mr. Kowalewski to advise him or her return, came back to work. 

According to Mr. Kowalewski' s evidence, upon Ms, Ingram's return 
from this extended absence, her attitude and work performance deteriorated. 
Mr. Kowalewski testified (transcript, p. 189) that "her attitude was that 
of unhappiness. She was slow, she was — she looked irritable, irritated. 
She wasn't really into the work as she was previous to that time." And 
further, (transcript, pp. 190-191) , "She had argued with some of the other 
employees that worked in front of her or behind her. It wasn't a team 
anymore. The whole production in that lasting room, it is important that 
they all work together and help each other. If a person is working on 
the top tier, we have three tiers, he would try to make sure that the next 
operator would be helped and he would have the work also available in the 
same tier if he needed it. She would ignore things like that, almost 
deliberately, doing it to slow down the work." Mr. Kowalewski testified 
that he mentioned his concerns to Ms. Ingram a number of times and that 
Ms. Ingram was unresponsive. According to Ms. Kowalewski (transcript, p. 
191) "at the beginning it was like she would just release a sigh and just 
ignore it. Ihere would be no answer. Later on, the thing got progressively 
worse. She mentioned it to me that if I did not like it, I knew what I 
could do . " 

At Christmas time, Mr. Kowalewski awarded what he appeared to feel 



17. 

were "merit" increments to some of his employees. He made no such award 
to Phyllis Ingram, he testified, for a number of reasons. He was unhappy 
with her work performance, with the length of time she took returning 
from her holiday and with her general attitude. 

Shortly after the decision concerning the raise, on January 11, 
1978, the cailminating incident leading to Ms. Ingram's dismissal 
occurred. On the basis of Mr. Kowalewski's testimony, the incident 
developed in the following way. Shortly before the morning coffee break 
at 9:30 a.m., the "insole- tacking" machine broke down. Mr. Kowalewski 
and the factory mechanic, Mr. Tim Watts, made an effort through the 
period of the ten minute coffee break and for some short period of time 
thereafter to repair the machine. Having failed to do so, the decision 
was taken to use a "stapling" machine as a substitute for the insole- 
tacker. At a point of time approaching 10 a.m., this makeshift arrange- 
ment was commenced and the process of forwarding lasts to the Assembler 
with insoles "stapled" to them began. At this point, according to his 
evidence, Mr. Kowalewski noticed that Ms. Ingram, wasn't working "very 
fast or at all" because there were very few racks available to the 
Assembler on which the assembled lasts could be placed for forwarding to 
the next station on the assembly line. There was no reason for this in 
Mr. Kowalewski's view. The breakdown in the insole- tacking operation 
did not reduce the volume of completed shoes approaching Ms. Ingram from 
the eighth station on the assembly line. In Kowalewski's view, Ms. 
Ingram had had plenty of time to fill up all three tiers with empty 
racks which would then be available to the Assembler. Mr. Kowalewski 
then approached Ms. Ingram and a conversation concerning this matter 
ensued. The following excerpt from Mr. Kowalewski's testimony indicates 



18. 



his version of the ensuing exchange with Ms. Ingram (at p. 203 of the 
transcript) : 



Q. What did you then do? 



A. Well, I went and approached Phyllis Ingram and I 
asked her why she couldn't pull-push the work. 
She had a lot of time to fill up that whole line, 
all three tiers. Instead, all I had was roughly 
ten empty racks which we could only put ten pairs 
on. She was very angry, you could see her just 
tensed up, and she said, "If you don't like it, 
you know what you can do." That wasn't the first 
time she mentioned that to me, so I asked her to 
come off the line to one side and I spoke to her 
again, that we need to get the shoes moving. We 
have the irachine repaired. There should be no 
problem for her to push-pull out the lasts. She 
said, "If you don't like that, you know what you 
can do." I said, "Okay, okay, that's it. You'd 
better go home, you're fired. Punch your card 
out." That was it. She went — 



Q. Did she react? Did she say anything? 

A. She was very, very angry. I can understand she 

got very angry that I told her to do that. I mean 
she got away before telling me these things. We 
walked towards the clock, she punched her card. 
She told me I am going to be very sorry and I am 
going to hear about this. She then returned to get 
her coat and bag and I waited by my office and she 
came back out. I saw her again and she said, "You 're 
going to be very, very, very sorry," and walked 
out of the building. 



Ms. Ingram's time card for January 11, 1978 was tendered as an exhibit. 
It indicates that the card was punched out at 10:05 a.m. 

Although Mr. -Kowaiewski affected some shyness on this point in his 
examination in chief, he indicated on re-examination by Mr. Cohen that 
he took Ms. Ingram to mean by the expression "you know what you can do" 
that she was saying in effect, "you can shove the job. That's what I 
felt like she meant. You can shove it." (Transcript, p. 253.) 



19. 

Ms. Ingram's version of the events leading up to the January 11th 
incident as well as her evidence of the incident itself, varies drama- 
tically from that of Mr. Kbwalewski. According to Ms. Ingram's 
testimony, the first sign of any difficulty in her relationship with 
Mr. Kowalewski arose in October of 1977, some time after she had returned 
from her holiday, when she sprained her foot. Ms. Ingram sprained her 
foot on the way home from work on October the 5th. She then took two 
weeks off work to recover and returned on the 17th of October. When 
she returned, according to her evidence, she continued to have some 
difficulty standing all day and by evening would find that her foot was 
swollen. On October 25th, she was asked by Stanley Kowalewski to work 
overtime and she declined to do so on the basis that her foot was sore. 
On the next day, according to her evidence, she came into work to find 
that her time card had been removed from the rack in which the time 
cards are kept. She protested the absence of the card to Stanley 
Kowalewski, and he is alleged to have replied that he had taken out her 
card because she had refused to work overtime. Ms. Ingram testified 
that she protested this treatment to Richard Kowalewski, the plant 
manager, and, when she returned to work the next day, found that her 
time card was back in the usual place and that a hand-written indication 
of a normal time for her arrival and departure had been written on 
the card. 

Ms. Ingram testified further that she was asked by Stanley 
Kowalewski to work overtime the next week and that when she declined 
for the same reason to do so "he walked away." Subsequently, Ms. Ingram 
was asked to work overtime and it was her evidence that she did so. 



20. 

Ms. Ingram indicated in her evidence that she felt that this incident 
was an instance of discrimination on the basis of colour and that 
similar treatment would not have been accorded a "white" employee. 
For his part, Mr. Kowalewski testified that he did not recall this 
incident although he did remember that Ms. Ingram had suffered a 
sprained foot and that he had, at the time, believed in the genuineness 
of her disability and accepted it as a basis for her absence from work. 

The other major incident prior to her dismissal which Ms. Ingram 
cited as evidence of discriminatory treatment related to the decision 
by Stanley Kowalewski rat to award her a raise at Christmas time. 
It was Ms. Ingram's evidence that, with one other exception, every 
other employee on the lasting line had received a raise at that time 
or so, at least, she says she was advised by all other employees. 
The one exception was Betty Buchanan, the operator of the insole- 
tacker, who was awarded an increase, according to Ms. Ingram, only 
after protesting to Stanley Kowalewski that her failure to obtain a 
raise was unfair. Ms. Ingram protested at the same time but was not 
successful in persuading Mr. Kowalewski to change his mind. Ms. 
Ingram professed to be particularly outraged by the absence of a 
raise and, ultimately, by her dismissal inasmuch as she was a hard 
worker. Indeed, she testified that "I work harder than everyone who 
is inside that factory." (Transcript, p. 27) Ms. Ingram indicated that 
it was her opinion that her job was harder because she did the last pulling 
job by herself. Work was fed to her by two operators in the sole- 
pressing operation. Stanley Kowalewski continually refused, as far she 
was concerned, to provide needed assistance with the last pulling. 



21. 

"Everybody has to work hard," said Ms. Ingram, "but I worked more because 
I have to work faster than everyone." (Transcript, p. 57) 

As Ms. Ingram saw the matter, her best efforts were unavailing. 
Stanley Kbwalewski complained about her work and refused to provide the 
assistance she needed. When she protested the absence of a raise, he 
is alleged to have said that he could obtain someone to do the job at 
half her wage. Ms. Ingram testified that she replied to this remark 
that Mr. Kbwalewski would have to hire two people to replace her. She 
further testified that she was vindicated in this view by the fact that 
when she was ultimately dismissed by Mr. Kowalewski, it was necessary 
to employ two people in the last pulling operation. In his evidence, 
Mr. Kbwalewski denies that this exchange took place. 

According to Ms. Ingram, neither her work performance nor her 
attitude towards Mr. Kowalewski was affected by these frustrations and 
disappointments. She continued to work in the same way and, in parti- 
cular, it is her evidence that on the Monday and Tuesday immediately 
preceding the Wednesday of January 11th when she was dismissed, she 
continued to work at the usual rate of speed. Nonetheless, Mr. 
Kbwalewski continued to complain to her about her performance. 

Ms. Ingram's version of the incident leading to her dismissal is 
the following. Although she does not deny that the work had backed up 
to some extent at her work station, this was attributable to two factors. 
First, Ms. Ingram had occasion to go to the washroom after the coffee 
break. According to her evidence, this occupied her for two to three 
minutes (Transcript, p. 69) . Secondly, she was engaged in pulling 
boots that morning and the pulling of boots, being more difficult, makes 



22. 

it more difficult to keep up with the work. Although some of Ms. Ingram's 

evidence with respect to this point is a bit vague, the following 

exchange from the transcript indicates that the fact that she was 

pulling boots was advanced by her as an excuse for the problem at the 

last pulling station (Transcript, p. 70-71) . 

Q. Are you saying the reason that Gerry [the Assembler] 
had no or a few racks is because you were working 
on boots? 

A. Gerry had a few empty racks. 

Q. Because? 

A. Because the boots were hard to take off. They 
take time to take off the boots — 

Q. You say you were working on boots? I under- 
stand it takes a longer time? 

A. Right. 

In response to Mr. Cohen's questions, Ms. Ingram went on to provide the 
following account of the exchange which then occurred with Mr. 
Kbwalewski . 

Q. Did Stan ask you for an explanation as to why 
there were no racks for Gerry? 

A. No, he didn't. He didn't ask me nothing. He 

only just come up — he didn't ask me nothing — 

Q. What did he say? 

A. He just come up to me and say, "The line is 

• stopped." I say, "Yes, the line is stopped 

Everytime the line is stopped you get somebody 
to help me clear the line." He say, "Okay, 
Phyllis, go and punch your card and go. I 
want to get rid of all your people." 

It is, for obvious reasons, this last alleged statement of Mr. Kbwalewski 

which Ms. Ingram suggests is evidence of Mr. Kowalewski ' s discriminatory 

attitude. In" his evidence, Mr. Kowalewski denies that he made a state- 



23. 

ment of this kind or referred in any other way to Ms. Ingram's race or 
colour in his conversation with her on the morning of January 11th. 

Given the importance of this allegation for the matter in dispute, 
it should be pointed out that the account Ms. Ingram gave of this 
alleged statement of Mr. Kowalewski's was slightly different in her 
examination in chief. In response to Mr. Millward ' s questioning, 
(Transcript, p. 27) Ms. Ingram testified that Mr. Kowalewski had said, 
"I want to get rid of all you people." On further questioning, she 
indicated that she understood him to mean by this that she was being 
dismissed because she was black. 

A slightly different version of this exchange was portrayed in 

the complaint (Exhibit 1) . The paragraph reads as follows: 

On January 11, 1978, I had occasion to go to the 
washroom and as usual, when I returned three minutes 
later, the line was piled up. Stanley made no 
attempt to get someone to help me when I asked. 
Instead he told me I was fired. He further told me, 
"Go home. I want to get rid of all of you." By this, 
I took him to mean all the blacks in the factory. 

The significance in the variation of these accounts of this alleged 

interchange is a matter which will be considered at greater length in 

the next section of this decision. 

In sum, then, the evidence of Phyllis Ingram and the evidence of 

Stanley Kowalewski differ on a number of points which are of importance to 

the resolution of this dispute. Ms. Ingram's evidence, if it be accepted 

in its entirety, would suggest (i) that she was subjected to oppressive or 

unfair working conditions, (ii) that she was the victim of a completely 

unwarranted dismissal, and (iii) that on the occasion of her dismissal a 

remark was made which might be interpreted as a reference to race. These 

facts are said to constitute evidence of a discriminatory attitude on the 



24. 

part of Mr. Stanley Kbwalewski. Mr. Kowalewski's evidence, if it be 
accepted, suggests that the basis for his treatment of Ms. Ingram at 
work and, in particular, for the January 11th dismissal was exclusively 
to be found in matters of her work performance and attitude, and had 
nothing at all to do with racial discriinination. 

V. An assessment of the evidence relating 
to the Ingram dismissal 



It is a difficult matter for an adjudicator to weigh the conflicting 
evidence of two witnesses, both directly involved in the events in 
question, who have recounted their version of the events 
with the apparent conviction that their own version of the story is a 
truthful one. In attempting to assess the reliability of the testimony 
of each witness, it will be helpful to consider the evidence of other 
witnesses presented to the Board of Inquiry relating to these events 
and to look, more generally, at what the evidence led before this 
Board of Inquiry suggests is the nature of the context in which these 
events have occurred. 

Turning first to a consideration of the evidence of Ms. Phyllis 
Ingram, it must be said that there are a number of aspects of Ms. 
Ingram's testimony which give to rise to concerns as to its general 
reliability. 

First, a careful review of Ms. Ingram's evidence suggests that she 
is neither a terribly accurate observer of events nor an individual with 
a very precise recollection of past events. Thus, there were a number 
of minor factual inaccuracies in Ms. Ingram's evidence relating to 



25. 

the size of the work force at Natural Footwear and the timing of the 
coffee break. More troubling, however, were erroneous statements con- 
cerning the granting of raises on the lasting line. Ms. Ingram first 
testified quite forcefully that she was the only person not to receive 
a raise at Christmas time in 1977. She then conceded on cross- 
examination that one individual, Ms. Buchanan, had received a raise only 
after protest. In fact, however, the evidence before this Board of Inquiry, 
both documentary and otherwise, establishes that nine of the thirteen 
employees on the lasting line did not receive raises at Christmas time. 

Ms. Ingram testified that all of her co-workers on the lasting 
line had advised her that they had received a raise at Christmas 
and that they expressed surprise that she had not done so. It seems 
improbable that each of these nine individuals did so advise Ms. Ingram. 
Nonetheless, it is at least conceivable that some of Ms. Ingram's 
confusion on the issue of raises results from an inaccurate perception 
of what others had advised her at the time or from a willingness on 
Ms. Ingram's part to draw inferences from partial information which 
were not consistent with the true facts. Moreover, there was an 
element of fact relating to the question of raises which no doubt was 
underlying Ms. Ingram's concern. She was, in fact, the only employee 
on the lasting line who had not received a raise for twelve months. 
Raises were given at irregular intervals through the year to employees 
who were thought to be especially deserving. Ms. Ingram had received 
frequent raises in the past and it is not surprising that she was 
very concerned that she did not receive one approximately twelve 
months after her last raise. 



26. 

If Ms. Ingram's testimony concerning the Christmas raises incident 
can be explained in part by good faith error, this aspect of her 
testimony also suggests the presence of an inclination to construe or 
exaggerate her circumstances in such a way as to confirm her feelings 
that she is being unfairly treated. This difficulty is evident also 
in Ms. Ingram's testimony relating to the difficulty of her job and 
the extent to which she was required to work harder than anyone else 
in the factory. It is simply not true that Ms. Ingram had the most 
difficult work assignment in the Natural Footwear Limited plant. Mr. 
Sid Green, a co-worker on the lasting line, whose evidence on this 
point I accept, indicated that the side lasting job was much more 
difficult. Mr. Richard Kowalewski, who had been responsible for the 
design of the assembly line, testified (Transcript, p. 347) that the last 
pulling job is the easiest job on the assembly line. In his view, it 
involves the least amount of skill and is the fastest operation to perform. 

Ms. Ingram testified that she was, in effect, doing the work 
of two people. This appears not to be true. It may have been Ms. 
Ingram's genuine feeling that this was the case, of course. Nonetheless, 
Ms. Ingram suggested in her evidence that other jobs on the line were 
done by two people whereas she was left to perform the last pulling 
operation on her own and that this demonstrated the excessive nature of 
her work assignment. In fact, many of the jobs on the lasting line are 
performed by one operator. Further, Ms. Ingram was under the 
impression that she had been replaced by two people and that this 
offered further support for her view of the difficult nature of her 
job. In fact, however, although there was a period of time during which 



27. 

a new (and unsuccessful) last puller was assisted, on a part-time basis, 
by a second worker, the job is currently being performed by one 
individual, Mr. Russ Khan. Mr. Khan testified before this Board of 
Inquiry and indicated that he is having no difficulty performing the 
last pulling operation by himself. He indicated that he is able to 
avoid blocking the line when he goes to the washroom by working ahead 
a bit before leaving the line. As well, he testified that he had only 
required the assistance of someone else on one or two occasions, for 
fifteen minutes or so each time, when he first began working at the 
last pulling position. Obviously, Mr. Khan's evidence tends to support 
the view of other witnesses that the last pulling job is not as 
burdensome as Ms. Ingram suggested in her evidence. Moreover, the ability 
of Mr. Khan to do the job does suggest that if, indeed, there was a 
reluctance on the part of Mr. Stanley Kowalewski to provide assistance to 
Ms. Ingram when she asked for it, that reluctance could reasonably be based 
on the assumption that the job could be handled manageably by one person. 

Finally, the most troubling signal of unreliability in Ms. Ingram's 
evidence relates to the events leading up to the incident on January 
11th, 1978. Ms. Ingram testified that her work performance and attitude 
towards Mr. Kowalewski were not altered in any way by her frustrations 
over the lack of a raise in her pay. Thus, it was in her view unfair 
of Mr. Kowalewski to complain about her work performance on the Monday 
and Tuesday of the week in which she was fired. I am satisfied on the 
basis of the evidence of other witnesses that Ms. Ingram's representations 
in this respect are simply false. Mr. Gerry Carinci, who was the 
Assembler at all material times and therefore in a good position to 
observe Ms, Ingram's work, testified that on the morning of January 11th 



28. 

and for some period of time previously, Ms. Ingram was not performing 
her work properly. Mr. Carinci indicated that she had been very moody 
and angry during the period from Christmas to January 11th, and that 
her work had slowed down considerably. In Mr. Carinci 's opinion, Ms. 
Ingram was difficult to talk to during this period. She would "snap at 
you" and she sometimes would "mutter" to herself. On the morning of 
January 11th, Mr. Carinci testified, Ms. Ingram was working very slowly and 
he was having difficulty getting racks in order to carry on his work as the 
Assembler. Mr. Carinci appeared to be a fair-minded and truthful witness. 
In other respects, his evidence was supportive of Ms. Ingram. I accept 
that these events transpired more or less in the way in which he described. 

Further, it should be noted that the company production records 
indicate that no boots were in production on January 11th, 1978. Ms. 
Ingram's explanation that she was slowed down on that morning by boot 
production appears to be false. 

The portrayal of the events leading up to and including the incident 
on January 11th which Ms. Ingram offered in her evidence is very 
different from what I have found to have occurred in fact. Ms. Ingram's 
evidence on these matters appears to have been intended to mislead the 
Board of Inquiry and to provide support for her allegation that Mr. 
- Kowalewski was motivated by discriminatory feelings, in his decision to 
terminate Ms. Ingram's employment with Natural Footwear Limited. 

Against this background, it becomes very difficult to place confidence 
in Ms. Ingram's complaints of unfair treatment and, in particular, in her 
account of the conversation with Mr. Kowalewski at the time of her 
dismissal on January 11th. In this respect, I believe, it is important 
to note the variety of the different versions of the statement attributed 



29. 

to Mr. Kowalewski by Ms. Ingram. She has indicated variously that he stated 
that he wanted to fire "all of you", or "all of you people" or "all of your 
people". The first version of this phrase, which was referred to in 
the Corrplaint as the phrase which Mr . Kowalewski used , is evidently 
somewhat ambiguous. "All of you" might be taken to refer to a particular 
type of worker, e.g. "those who work slowly", rather than a particular 
type of person in terms of racial or ethnic origin. NO doubt it is 
for this reason that the Gomplaint goes on to say, "by this I took him 
to mean all the blacks in the factory." The versions of the statement 
given by Ms. Ingram in her oral testimony for this Board of Inquiry, 
however, become progressively less ambiguous. If Mr. Kowalewski had 
indeed said that he wanted to' get rid of "all of your people," it would 
be easy to interpret such a remark as indicating a racial bias. In view 
of the signals of unreliability indicated above with respect to Ms. Ingram's 
evidence — difficulties in the accuracy of her observation and recollection 
of the facts, a tendency to misrepresent material facts so as to support 
her theory of discriminatory conduct — I would not be disposed to find 
that Mr. Kowalewski made a racist remark on the basis solely of Ms. 
Ingram's evidence. 

As far as Mr. Stanley Kowalewski 's evidence is concerned, one may 
also perceive some difficulty in accepting his testimony as a completely 
accurate account of all of the events in dispute. As Mr. Millward 
pointed out in argument, Mr. Kowalewski indicated that he could not 
remember most of the incidents referred to Ms. Ingram. And, as Mr. 
Millward argued, whatever opinion one might take of the general 
reliability of Ms. Ingram's evidence, it does seem unlikely that she 
would completely fabricate the occurrence of such events as the dispute 
arising from her refusal to work during the time when she had a sprained 



30. 

foot, the argument she had with Mr. Kbwalewski concerning her raise at 
Christmas time, and so on. On the other hand, as Mr. Cohen argued, it is 
conceivable that these events, whatever their details were in fact, did 
not have a great deal of significance for Mr. Kbwalewski and therefore 
did not form a profound impression upon him. 

Further, other witnesses did not apparently share Mr. Kbwalewski' s 
view that Phyllis Ingram was working slowly during the fall. As Mr. Cohen 
pointed out, however, Mr. Kbwalewski could be in exclusive possession of 
the facts relating how co-operative Ms. Ingram was with him during this 
period and, if his evidence be accepted, Ms. Ingram's attitude loomed large 
as a reason for denying her a raise. 

Apart from the evidence of 'the two principal participants in the 
January 11th incident, attention may be drawn to other factors which, in my 
view, offer some limited support for the thesis that it is unlikely that Mr. 
Kowalewski was motivated in any way by racial discrimination in his 
decisions relating to Phyllis Ingram. 

First, it may be noted that Mr. Kowalewski and Ms. Ingram worked well 
together for a period approaching three years. It is not inconceivable tha 
Mr. Kowalewski suppressed racist or discriminatory feelings for all that ti 
and that these feelings only had occasion to surface in the last few months 
Ms. Ingram's employment when confronted,. by .what, he ..viewed as .defiant or una 
operative conduct. Accordingly, this long history of apparently satisfacto: 
contact is not of much weight. Neither, in my view, is it entirely immater. 

Secondly, it should be noted that other black employees who worked 
directly under Mr. Kowalewski *s supervision testified before this Board 
of Inquiry that they did not feel he was a person who acted on the basis of 
discriminatory attitudes. Ms. Cecelia George testified that she not only 
i^&Mo£t^s^i^^i^jM&iK:&ks£:r ^iscrilaBaafeLon , but. that she .found. Stanleys f 



31. 

Kowalewski to be an easy person to work for. Ms. Betty Buchanan, the 
operator of the insole-tacker and thus located directly next to the last 
pulling station, indicated that she saw no evidence of discrimination 
against blacks at the factory. At the time of the hearing in this matter, 
Ms. Buchanan had occupied this position for five and a half years. It 
may be that it would be unwise to rely exclusively on the evidence of 
existing employees with respect to such matters. On the other hand, this 
evidence certainly does nothing to support the theory advanced by Ms. 
Ingram and the Ontario Human Rights Commission. 

Finally, it may be noted that Mr. Kowalewski has dismissed quite a 
substantial number of non-black employees during his time as a supervisor. 
It was his evidence that he had dismissed 31 employees all told, and of 
these, only one, that being Phyllis Ingram, was a black employee. 
Although, as will be seen in the next section of this decision, Mr. 
Millward and Mr. D'Oliveira argue that Mr. Kowalewski was involved in 
one and perhaps two other dismissals of black employees, there is little 
evidence in these statistics that Mr. Kowalewski was indulging in a 
personal vendetta against black employees. As there was some considerable 
weight placed on evidence of this kind by Mr. Millward and Mr. D'Oliveira, 
however, the next section of this decision w ill be devoted to a conside- 
ration of that evidence and an explanation of my conclusion that it is 
^'ultimately not of assistance in evaluating the allegations made against 
Mr. Stanley Kowalewski with respect to his dealings with Phyllis Ingram. 

In summary, then, I am persuaded for the foregoing reasons that 
the evidence of Phyllis Ingram relating to the events leading up to and 
culminating in her dismissal on January 11, 1978, cannot be relied on 
as a satisfactory basis for concluding that Mr. Kowalewski premised 
his decisions relating to either the term and conditions of Ms. Ingram's 



32. 

employment or her dismissal either exclusively or in part on attitudes 
of racial bias or discrimination. I am persuaded, and I so find, 
that Ms. Ingram was not working conscientiously at least for a short 
time prior to her dismissal and certainly on the morning of January 
11th. I find also that the sole motivating factor in Mr. Kowalewski 1 s 
decision to deny Ms. Ingram a raise and, ultimately, terminate Ms. Ingram's 
employment was his concern with her defiant attitude and unco-operative 
approach to her work. 

I might add, however, that it is no part of this decision that Mr. 
Kowalewski was completely justified in iitposing the sanction of dismissal 
on Ms. Ingram. As Mr. Cohen himself conceded, it may be that another 
employer would have adopted a less harsh measure in response to Ms. Ingram' 
misconduct. Moreover, it is not beyond the realm of possibility that the 
deterioration in Ms. Ingram's work performance and general attitude was 
contributed to by insensitive handling by Mr. Kowalewski and by the 
apparently rather chaotic administrative practices which prevailed at the 
plant. Ms. Ingram may have been quick to perceive racial injustice. It 
is not surprising, however, that in the absence of settled and written 
policies with respect to such matters as holidays, raises and so on, 
Ms. Ingram apparently suffered from some misconceptions as to what 
the company practices and policies were with respect to matters of this 
kind. Whatever deficiencies there may have been in Mr. Kowalewski' s 
performance as a supervisor and manager, however, there is not a 
persuasive basis established in the record before this Board of Inquiry 
for the conclusion that such practices were motivated by feelings of 
racial discrimination or were particularly directed at one racial or 
ethnic group. 



I 

33. 

VI. Evidence Relating to Other Dismissals 

As indicated above, Mr. Millward and Mr. D' Olive ira placed 
considerable emphasis on evidence relating to other dismissals of 
black employees which occurred at Natural Footwear Limited . in an 
attempt to support the thesis that the Kowalewski brothers, Stanley 
included, had embarked on a program of dismissing black employees. 
Much the greater part of the evidence led before this Board of 
Inquiry was advanced in support of this thesis. Needless to say, 
a theory of this kind is very difficult to support on the kind 
of evidence that is likely to be available to an inquiry of 
this kind. If such a plan or practice had developed at Natural 
Footwear Limited, it is most unlikely that any of the principals would 
reveal their intentions in front of potential witnesses or would 
straightforwardly testify with respect to such matters before a Board 
of Inquiry established under the Ontario Human Rights Act. In the 
nature of things, it is likely that such a proposition could only be 
supported by indirect evidence suggestive of something beyond mere 
coincidence with respect to employment decisions taken with regard to a 
particular type of employee. 

Mr. Millward and Mr. D'Oliveira have brought forward evidence of two 
- different kinds in support of this thesis. First, evidence has been led 
with respect to the number of black employees in the work force at 
various points in time at Natural Footwear Limited and emphasis has been 
placed on the fact that at the time when Phyllis Ingram was dismissed 



> 

34. 

from her job at Natural Footwear the number of black employees had 
declined to an extent which, they argue, is significant in the sense that 
it reflects some conscious desire to accomplish this objective. Secondly, 
a number of black former employees of Natural Footwear were called to 
testify. In each case, it was the opinion of the individual in question 
that their dismissal was unwarranted. Further, each of these witnesses 
felt that there was some evidence of attitudes of racial bias on the part 
of one or another of the supervisory personnel at Natural Footwear Limited. 

The evidence led by Mr. Cohen on behalf of Natural Footwear Limited 
in response to these allegations was, in essence, evidence tending to 
show that the dismissals in each case were based on considerations other 
than those of racial discrimination . 

Before turning to consider briefly each of the contentious 
dismissals discussed in this testimony before this Board of Inquiry, 
two preliminary points may usefully be made. First, the difficulties 
which I have suggested inhere in assessment of evidence of this kind, 
are substantially compounded in the present case by the fact that Mr. 
Stanley Kbwalewski, whose attitudes are the central concern of this 
inquiry, was not in any way involved in most of these dismissals. Indeed, 
it is my conclusion that Mr. Kbwalewski is not responsible for the 
decision taken in the one or two cases in which he may be said to have a 
connection to the dismissal in question. Thus, for the most part, the 
evidence led with respect to these dismissals does not suggest that 
Stanley Kbwalewski conducted himself in a way which is consistent with 
discriminatory attitudes. Rather, the contention is to the effect that 
other members of the Kowalewski family who were supervisory personnel 



35. 

so conducted themselves and that this, in turn, should give rise to the 
making of an inference concerning Stanley KOwalewski's state of mind 
at the time when he decided to dismiss Ms. Ingram. 

Secondly, Mr. D'Oliveira made a number of submissions with respect 
to the potential relevance of statistical evidence in a matter of this 
kind. It was Mr. D'Oliveira's submission that in view of the difficulty 
in obtaining direct proof of overt racial discrimination in employment 
cases, a court or other adjudicatory body attempting to determine 
whether discriminatory acts have occurred should be prepared to examine 
evidence which is not specific to individual incidents but is, rather, 
evidence of a general character relating to patterns of conduct on the 
part of employers which tend to show the presence of policies having 
a discriminatory content. 

Mr. D'Oliveira placed reliance on an American case dealing with a 
similar problem under Title VII of the U.S. Civil Rights Act, in which the 
court stated that, "... it is now well established that courts must also 
examine statistics, patterns, practices and general policies to 
ascertain whether racial discrimination exists . " See Brown v. Gaston 
County Dyeing Machine Company (1972) 457 F. 2d 1377 at p. 1382. The Brown 
case, it should be noted, is a case in which statistical evidence was 
....... relied on to demonstrate that. a. plaintiff class was being discriminated 

against by the promotion and hiring practices of the defendant company. 
This class action had been coupled with an individual complaint of 
specific discriminatory treatment, but this latter complaint had been 
dismissed as unsupported by the evidence. The class action continued, 
however, and it was the holding of the court in Brown that on the 
resolution of a matter of this kind, it would be perfectly proper to 



36. 

examine statistical evidence tending to show that certain employment 
practices had resulted in lack of what would appear to be a statistically 
reasonable rate of success within the company's employ. 

The present case is not, of course, a class complaint raising an 
issue of this kind. The complaint brought by Ms. Ingram is very speci- 
fically related to the manner in which she has been treated by Mr. 
Stanley Kowalewski. In the resolution of a specific grievance of this 
kind, statistical evidence relating to the employment practices of the 
respondent may not bear precisely the same relevance to proof of the 
allegations involves as it does in cases such as Brown . 

Nonetheless, I do agree with Mr. D'Oliveira's submission that 
statistical evidence of the kind he has pressed upon this Board of 
Inquiry may be of some relevance to the determination of the issues 
raised in Ms. Ingram's complaint. Just as it may be of some limited 
relevance to note that Mr. Stanley Kowalewski appears to have had 
satisfactory employment relationships with a number of black employees, 
so too it may be helpful in assessing the credibility of the evidence 
relating to a particular dismissal to note that a significant number of 
dismissals have been visited upon the members of a particular racial 
or ethnic group. Indeed, it may be that in an appropriate case, 
statistical evidence of this kind might be said to give rise to a 
prima facie case which would shift a burden of proof to the employer to 
lead evidence to demonstrate that the statistical evidence is to be 
explained on other than discriminatory grounds. 

With specific reference to the present case, however, it 
should be noted that it is not necessary to determine whether a 
prima facie case of this kind has been established. The employer 



37. 

has, indeed, come forward with evidence in response to the allegations 
deriving from these statistics. Accordingly, the question which 
arises here is not whether statistics alone give rise to the inference 
that there were widespread practices of discrimination at Natural 
Footwear Limited, but rather whether, on the basis of all the evidence 
led at the inquiry with respect to these matters, the complainant and 
the Ontario Human Rights Commission have established, on the balance 
of probabilities, that such practices have in fact occurred. 

Again, presuming that the existence of a pattern of discriminatory 
practices was established on the evidence, it would then be necessary to 
take the next step of drawing a connecting link between the existence of the 
general practice and the particular incident in question, lb take an 
illustration from the present case, even if it were established that dis- 
criminatory practices were occurring at Natural Footwear Limited, it would 
be possible for the Board of Inquiry to conclude that Mr. Stanley Kowalewski 
was untouched by wrongdoing of this kind and, in fact, was acting on the 
basis of non-discriminatory attitudes with respect to the incident in 
question. In other words, the existence of such a practice might be 
relevant, but it would not be dispositive of the issue relating to the 
specific incident. By way of contrast, in the case of a class action, 
such as that adjudicated in the Brown case, the establishing of the 
fact that the practice existed would settle the matter in favour of the 
plaintiff class. 

In the present case, I am not persuaded that the complainant and 
the Ontario Human Rights Commission have made out the case that a pattern 
of dismissals linked by a discr minatory motivation has occurred. In 



38. 

order to indicate the basis for this conclusion, it will be helpful to 
review briefly the evidence relating to the dismissals of those black 
former employees who testified before this Board of Inquiry. Attention 
will then be turned to the raw statistics on which the complainant 
and the Ontario Human Rights Commission rely. 

Four former employees, all of whom are black, testified that they 
had been dismissed and that they felt there was some evidence of 
discriminatory practice at Natural Footwear Limited. Not each of these 
employees testified that their own dismissal was somehow to be 
explained on discriminatory grounds, but each of these witnesses was of 
the view that there was some evidence of discriminatory treatment 
either involved in their own dismissal or in some other treatment 
accorded them. at Natural Footwear Limited. 

The first of these witnesses, Hazel Nembhard,was fired after working 
for approximately three years at Natural Footwear as a stitcher in 
the sewing room under the direct supervision of Henry Kowalewski. The 
principal illustration of discriminatory practice advanced by Mrs. Nembhard 
related to what she saw as unfair criticism of her with respect to her 
attendance record. She felt that white employees would not be criticized 
in the same way that she was. There was, however, evidence led before 
this Board of Inquiry to the effect that Mrs . Nembhard did have a very 
poor attendance record. Moreover, one of Mrs. Nembhard' s co-workers 
testified that she was someone who spent a lot of time talking on the 
job. An evidentiary basis has not, I believe, been established before 
this Board of Inquiry which would warrant a finding that Mrs. Nembhard 
had been treated in a discriminatory fashion. 



39. 

A second black employee dismissed by Henry Kbwalewski, Mrs. Veronica 
Marsh, testified to the same general effect as Mrs. Nembhard. It was 
Mrs. Marsh's view that she was unfairly criticized for her lateness. 
Again, however, there was evidence led before this Board of Inquiry to 
the effect that Mrs. Marsh had a very poor attendance record. Richard 
Kowalewski testified to this effect. Further, a photocopy of a memorandum 
to Veronica Marsh from Henry Kowalewski was filed as an exhibit. The 
memorandum warned Mrs. Marsh that if her punctuality and working habits 
did not improve that her employment would be terminated. Mrs. Marsh was 
fired she weeks or so after the date indicated on this memorandum. 
Additionally, a co-worker from the sewing room testified that Mrs. Marsh 
talked a lot on the job and was inclined to spend a long time in the 
washroom. Again, I am not persuaded that the record before this Board 
of Inquiry establishes that discriminatory attitudes played a role in 
Mrs. Marsh's treatment at Natural Footwear Limited. 

A third black employee dismissed by Henry Kowalewski, Mrs. Marlene 
Harvey, testified that her dismissal was evidence of discrimination 
inasmuch as she was fired simply because she had failed to attend work 
one day when she was ill. Mrs. Harvey did not think that white employees 
would be fired in similar circumstances. Again, however, there was 
evidence led before this Board of Inquiry that Mrs. Harvey had a very poor 
attendance record. Mr. Richard Kowalewski testified on this point and sub- 
mitted some documentary evidence in support of this proposition. As well, 
a co-worker testified that all she could remember about Mrs. Harvey was 
that she "used to be late in the mornings." Again, it is my view that 
there is not enough evidence in the record before this Board of Inquiry 



i 

40. 

to warrant the conclusion that Mrs. Harvey was dismissed on discriminatory 
grounds. 

The fourth dismissed black employee, Mr. Sid George, presented a 
more complex picture. First, it must be noted that Mr. George worked 
under the direct supervision of Mr. Stanley Kowalewski. Further, 
although Mr. George appeared to be pleased with his relation- 
ship with Mr. Kowalewski up until the time of his dismissal, it. was his 
view that since his dismissal was completely unwarranted, there 
must be some discriminatory attitude underlying the decision to 
dismiss. I am satisfied, however, that on the evidence before ire, it 
would appear that the decision to terminate Mr. George's relationship 
with Natural Footwear Limited was taken by Mr. Richard Kowalewski. The 
culminating incident, as a result of which Mr. George was dismissed, 
occurred at a time when Stanley Kowalewski was absent from the plant 
and Mr. Richard Kowalewski was in charge of the lasting operation. 

Both Richard Kowalewski and Stanley Kowalewski testified to the general 
effect that the basis for dismissing Mr. George related to the quality 
of his work performance. The evidence relating to this issue was more 
complex than in the other dismissal cases inasmuch as it was clear that 
in many respects, Mr. George was a cherished and highly valued employee. 
Mr. George was alleged to be a very fast worker and one who, through 
his ability to work on the various machines on the lasting line, was 
capable of filling in where needed and ensuring that production speed 
was maintained. For this reason, Stanley Kowalewski was an admirer of 
Mr. George's and it is apparent that Mr. George realized that his efforts 
were appreciated. Against this background, Mr. George professed 



41. 

astonishment that he should be dismissed on the basis of a work 
performance problem. 

The specific problem alleged by both Richard and Stanley Kowalewski 
with respect to Mr. George's work was that Mr. George sacrificed 
quality to speed. They indicated that in his haste he would make 
mistakes resulting in the necessity of destroying shoes that he had 
worked on. This alleged "quality" problem was said to be not as serious 
a matter prior to the introduction of the so-called "Classic" line, 
an innovation which required more sophisticated work and involved the 
use of more expensive materials. 

The culininating incident recounted by Richard Kowalewski related 
to what Richard Kowalewski viewed as careless work on Mr. George's 
part. Mr. Kowalewski was approached by Mr. Fidale, the recently 
appointed foreman of the lasting line, who complained to Mr. Kowalewski 
that he was having trouble with Mr. George, and showed Mr. Kowalewski 
a damaged pair of shoes that he said Mr. George had worked on. 
Mr. Kowalewski asked for further evidence of this problem and 
after being shown a substantial number of shoes that were damaged in a 
similar fashion, Mr. Kowalewski called Mr. George into the office and 
after a brief exchange indicated that he was being suspended from his 
employment at Natural Footwear. 

Upon Stanley Kowalewski 's return to work, Richard Kowalewski 
advised him of these events. It is the evidence of both brothers that 
Stanley indicated at this time that he did not wish to dismiss Mr. 
George. Richard Kowalewski testified that he was of the view that 
Stanley's judgement in this matter was clouded by his friendship with 



42. 

Mr. George. Accordingly, Richard Kowalewski prevailed on Stanley to 
dismiss Mr. George and asked Stanley Kowalewski to communicate this fact 
to Mr. George as he was the supervisor responsible for his department . 

Mr. George's evidence would suggest that although he feels that his 
dismissal was unwarranted, it is nonetheless true that he was having some 
difficulty with the foreman, Mr. Fidale. Indeed, Mr. George suggested 
that many of the shoes shown to Richard Kowalewski as having been 
damaged by Mr. George were in fact damaged, perhaps, by Mr. Fidale 
himself. Moreover, Mr. George testified that Mr. Fidale was critical 
of his work performance and that he felt this criticism was unwarranted. 
Mr. George's evidence relating to his relationship with Mr. Fidale was 
somewhat inconsistent. When it was indicated to him in cross examination 
by Mr. Gohen that "conflict with the foreman" was suggested as one of 
the reasons for his dismissal, Mr. George protested that he had no 
conflict with the foreman at the time of dismissal and was working well 
with him. However, given Mr. George's assumption that whatever problems 
did exist were attributable to Mr. Fidale' s deficiencies, it is perhaps 
not surprising that Mr. George would be reluctant to see this problem 
as a basis for his own dismissal. 

On balance, then, I am persuaded that a case that the dismissal of 
Mr. George was based on discriminatory attitudes has not been made out. 
I accept the substance of 'the evidence of the Kowalewski brothers that 
they did share some concern about the work performance of Mr. George. 
Indeed, Mr. George himself was prepared to concede on cross examination 
that it was entirely possible that Richard Kowalewski had been misled 
by Mr. Fidale and that Richard genuinely believed that Mr. George was 
responsible for defective workmanship on a significant number of 



43. 

shoes. It is not necessary for me to decide whether Mr. Fidale was 
acting duplicitously in this matter. It is sufficient, for the purposes 
of the present dispute, to reach the conclusion that such views were 
held by Mr. Richard Kowalewski and that they formed the basis for his 
decision to terminate Mr. George's contract of employment. 

By way of summation, then, the evidence led before this Board of 
Inquiry relating to the dismissals of Mrs. Nembhard, Mrs. Marsh, Mrs. 
Harvey and Mr. George do not, ultimately, lend persuasive support for 
the view that the Kowalewski brothers had embarked on a plan of 
dismissing black employees for discriminatory reasons. 

Other incidents which might be construed as evidencing discriminatory 
attitudes were referred to in the evidence of some witnesses. In 
particular, two incidents were the subject of discussion. First, 
attention was drawn to the fact that another black employee, Marlena 
Reid, was not hired back after an absence from work related to Ms. Reid's 
pregnancy. On this point, it was the evidence of Richard and Stanley 
Kowalewski that Ms. Reid called them to seek a return to her employment 
after the seventeen-week period of pregnancy leave to which she would 
be entitled by law. Stanley consulted with Richard on the matter. Once 
it was determined that they had no legal obligation to rehire Mrs. Reid, 
they declined to do so for the reason that they had no particular need of 
her services at that time. Although Mr. Millward and Mr. D'Oliveira 
questioned the veracity of this testimony, no direct evidence to the con- 
trary was presented to the Board of Inquiry. A second incident, however, 
relating to the laying off of Ms. Dorcas Daley is more troubling. Mr. 
Richard Kowalewski testified that Ms. Daley was laid off by him 'because 
of a lack of work. On cross examination, Mr. D'Oliveira pointed out 
to Mr. Kowalewski that Ms. Daley had been engaged in her work in the 



44. 

cutting room a few months longer than a person who was not laid off at 
that time, a Mr. Degar. Ms. Daley is a black woman. Mr. Degar is not 
black. Mr. Richard Kowalewski offered one or two lame excuses for what 
appears to be preferential treatment of Mr. Degar in his testimony but 
ultimately conceded that he did not think of any reason why Mr. Degar 
should have been preferred. 

The Daley-Degar episode is the one incident in all of the incidents 
that were canvassed in the evidence before this Board of Inquiry which 
lends support to the view that Mr. Richard Kowalewski, at least, may have 
made an unfair employment decision with respect to a black employee for 
which a nondiscriminatory explanation is lacking. Moreover, the 
evasiveness of Mr. Richard Kowalewski 's responses to Mr. D'Oliveixa's 
questions give rise to legitimate concerns about the straight-forwardness 
of Mr. Kowalewski 's testimony. For this reason, I have been reluctant 
to reach any conclusion with respect to the non-discriiiuratory nature of 
the other employment decisions reviewed in these proceedings exclusively 
on the basis of Mr. Richard Kowalewski ' s evidence. Nontheless, it is my 
view that unresolved doubts about the Daley-Degar incident and the 
reliability of Mr. Richard Kowalewski' s testimony do not provide a 
sufficient basis for concluding that these other incidents are to be 
explained on the basis of discriminatory attitudes on the part of Henry 
and- Stanley Kowalewski . Nor am I persuaded by the evidence before this 
Board that Richard Kowalewski was motivated by discriminatory attitudes 
in his decision to dismiss Sid George. 

Finally, more precise reference should be made to the statistical 
evidence which Mr. Millward and Mr. D'Oliveira advanced as what might be 
termed "circumstantial" evidence of discriminatory employment practices. 



45. 

Essentially, two different statistics were thought to be significant 
by Mr. D'Oliveira. First, Mr. D'Oliveira pointed out that the number 
of black employees in the work force appeared to decline rather 
sharply in 1978 and that, as of December, 1978, only four black 
employees remained in the work force. The previous December, nine 
blacks were employed. One year previously, eleven blacks were employed 
at Natural Footwear. Secondly, Mr. D'Oliveira maintains that an 
examination of overall dismissal statistics indicates that an unusually 
high percentage of the dismissals of long-term employees involved 
black employees. 

Mr. Cohen's responses to these arguments are, I thin};, persuasive. 
First, with respect to the drop in the number of blacks in the work 
force during 1978, Mr. Cohen points out that in that year only two 
blacks were fired, Phyllis Ingram and Sid George, and that in that same 
period, two new black employees were hired. The decline in the number 
of blacks in the work force is not to be explained, in Mr. Cohen's 
view, by discriminatory dismissal practices. Moreover, Mr. Cohen 
maintains that the hiring of black employees continued after this period 
of time and that when viewed in the longer term, the statistics relating 
to the number of black employees on the work force at Natural Footwear 
does not support the thesis advanced by Mr. Millward and Mr. D'Oliveira 
that Natural Footwear Limited engaged in discriminatory hiring or 
dismissal practices. 

With respect to dismissal statistics, Mr. Cohen has pointed out that 
in view of the very substantial number of employees that have been dismissed 
over the years, blacks do not appear to have been singled out for unusually 
harsh treatment. Richard Kowalewski testified that the company records 



46. 

indicate that 93 people have been dismissed during the period of Natural 
Footwear Limited's operation. Most of the discussion of dismissals 
statistics focussed on an exhibit (number 21) which was a list of all 
employees who had left the employment of Natural Footwear Limited for one 
reason or another during the period from 1976 to 1979. Of the 66 people 
on that list who were dismissed , it would appear that six of them were 
black employees. It should be noted that there is some disagreement as 
to the precise numbers involved as a result of certain disagreements as 
to whether, in one or two instances, the termination of the employment 
relation was, in fact, a dismissal. It was not suggested by Mr. 
D'Oliveira that these figures indicate that a disproportionate number of 
black employees were dismissed. Mr. D'Oliveira did point out, however, 
that the vast majority of the 66 dismissals occurred within the first nine 
months of the individual employee's period of employment. On the other 
hand, five of the six black employees on this list who were dismissed, were 
dismissed after working for the company for a period of two years or more. 

As Mr. Oohen pointed out, however, the significance of this is some- 
what ambiguous. Mr. Cohen argued that it might indicate that the company 
was more generous in its treatment of black employees whose work was not 
satisfactory. They were not fired as quickly, on average, as non-black 
employees. Mr. D'Oliveira, on the other hand, felt that the statistic 
constituted evidence that decisions were being taken to dismiss employees 
who had established a substantial record of satisfactory work at Natural 
Footwear Limited, and that this tended to show a discriminatory dismissal 
practice . 

In assessing this evidence, it is important to note that the specific 
circumstances relating to dismissals of a number of these employees were 



47. 

considered at length in the evidence before this Board of Inquiry, and 
that it has been found, in a careful review of the evidence, that the 
allegation that discriniinatory attitudes played a role in these dismissals 
has not been supported in the evidence. This, together with the fact 
that the numbers involved are rather small, persuades me that it is not 
possible to draw any inference from these statistics in support of the 
thesis that the supervisory personnel at Natural Footwear Limited were 
engaged in a coordinated and concerted effort to reduce the number of 
black employees in their work force. 

It follows from this finding, of course, that this evidence is 
not of assistance in attempting to draw inferences with respect to the 
state of mind of Mr. Stanley Kowalewski at the time of his dealings 
with the complainant, Phyllis Ingram. 

VII. Conclusion 

For the foregoing reasons, then, it is my finding that the 
complainant, Phyllis Ingram, and the Ontario Human Rights Commission 
have not established, on the balance of probabilities, either that Ms. 
Ingram was subjected to unfair conditions of employment or was 
dismissed from her employment by reason of her race or colour. 

Again, however, I would emphasize that it is not the task of a 
Board of Inquiry in a case of this kind, to determine whether the 
dismissal of Ms. Ingram, or of the other employees whose dismissals were 
reviewed in the evidence submitted to this board, were justified or 
warranted in the sense that such sanctions were appropriate management 



48. 

responses to the conduct or work performance of the individual involved. 
It may or may not be the case that one or another of these dismissal 
decisions was unduly harsh in this respect. An evidentiary basis for 
reaching conclusions on such questions has not been established before 
this Board. 

I do not wish to leave this matter, however, without commenting on 
the evidence led on behalf of the complainant which suggests that the 
respondent has been slow to develop clear and orderly administrative 
policies and procedures with respect to the hiring, promotion and firing of 
employees and the terms and conditions of their employment. It may well 
be that in a appropriate case, the absence of orderly administrative 
practices — such as the use of a clearly objective standard for measuring 
work performance — may constitute evidence of discriminatory conduct. In 
the words of an American court, the lack of objective guidelines for such 
matters as hiring and promotion may constitute "badges of discrimination" 
which may serve, to corroborate other evidence of discriminatory practices. 
See Brown v. Gaston County Dyeing Machine Co . (1972) 457 F. 2d 1377 at p. 
1383. In the present case, however, I am persuaded that any administrative 
deficiencies of this kind present in the employment practices of the respondent 
result, as Mr. Cohen suggested in his argument, from the youth and 
inexperience of the respondent 1 s supervisory personnel and the rapid rate 
of growth and expansion which the company has enjoyed over the past six or 
even years of its existence. At some point in time, of course, such 
explanations would lose their persuasiveness. 

Quite apart from the potential evidentiary significance of such 
practices, however, it is appropriate to observe that the absence of proper 
administrative procedures of this kind may give rise to the reality or, 



49. 

at the very least, the appearance of random and disparate decision-making 
in the work place. In such an atmosphere, perceptions of favouritism 
and racial or ethnic discrimination are likely to develop, especially 
of course, amongst employees who have been subjected to disciplinary 
measures of one kind or another. Whether or not such perceptions lead to 
the making of complaints under the Ontario Human Rights Code, the 
existence of suspicions of discriminatory treatment obviously undermines 
the development of the kind of workplace environment which it is the Code's 
objective to foster. 

Having found that the allegations of discriminatory conduct advanced 
against the respondent have not been established, this complaint is 
dismissed. 



Dated at Toronto this ... ^ day of March, 1980 



V.- 



John D. MoCamus